Wilson and National Disability Insurance Agency

[2023] AATA 528

Wilson and National Disability Insurance Agency [2023] AATA 528 (29 March 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2020/2754

Re:Julie Wilson

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member Joanne Collins

Date:29 March 2023

Place:Brisbane

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

......................................[SGD]..................................

Senior Member Joanne Collins

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – whether an Applicant meets disability requirements – section 24(1) – chronic fatigue syndrome – nerve impingement – functional neurological disorder – central sensitisation syndrome – secondary depression – whether applicant has a disability for the purposes of section 24(1)(a) – whether impairment is permanent or likely to be permanent – whether known, available and appropriate treatments undertaken – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 ss 43

National Disability Insurance Scheme Act 2013 ss 18, 21, 22, 23 ,24, 25, 27,100(2), 103(1) and 209

CASES

G v Minister for Immigration and Border Protection [2018] FCA 1229 at 171

Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201

National Disability Insurance Agency v Davis [2022] FCA 1002

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

SECONDARY MATERIALS

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

National Disability Insurance Scheme Operational Guidelines – ‘Our guidelines - becoming a participant; Applying to the NDIS’

REASONS FOR DECISION

Senior Member Joanne Collins

29 March 2023

1. Ms Wilson, a 53-year-old woman, experiences symptomology she contends permanently disables her. She applied to the National Disability Insurance Agency (the ‘Agency’) for access to the National Disability Insurance Scheme (the ‘Scheme’) so that she can receive supports that will assist her. That application was refused. She has now applied to the Administrative Appeals Tribunal (the ‘Tribunal’) for review of that decision (the ‘decision under review’).[1] The issue is whether Ms Wilson meets the disability requirements under section 24 of the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’) and is entitled to access to the Scheme.

   [1] T1; National Disability Insurance Scheme Act 2013 (Cth), s 103.

2. Ms Wilson nominates five conditions for the purposes of access to the Scheme:

   ·Chronic Fatigue Syndrome (‘CFS’);

   ·Nerve impingement;

   ·Functional Neurological Disorder (‘FND’);

   ·Central Sensitisation Syndrome (‘CSS’); and

   ·Depression.[2]

   [2] Hearing Bundle, Tab 11, page 196.

3. This review will be determined by section 24 of the Act. Section 24 provides as follows:

   (1)A person meets the disability requirements if:

   (a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

   (b)the impairment or impairments are, or are likely to be, permanent; and

   (c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

   (i)communication;

   (ii)social interaction;

   (iii)learning;

   (iv)mobility;

   (v)self-care;

   (vi)self-management; and

   (d)the impairment or impairments affect the person’s capacity for social or economic participation; and

   (e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

4. The Agency disputes that Ms Wilson meets the disability requirements for each of her five nominated conditions. 

5. The terms ‘disability’ and ‘impairment’ are not defined in the Act. In Mulligan v National Disability Insurance Agency[3] (‘Mulligan’), Mortimer J commented as follows:

   The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.[4]

   [3] [2015] FCA 544.

   [4] Ibid at [51].

6. Whether Ms Wilson meets the disability requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’ with a relatively high degree of precision and be positively satisfied that Ms Wilson meets the disability requirements for at least one of her nominated conditions.

   BACKGROUND

7. In 2008 Ms Wilson contracted a viral infection[5] and was diagnosed with chronic fatigue syndrome (‘CFS’)[6]. Subsequently, in 2014 she began to develop additional symptoms which she now identifies are as follows:

   ·‘Intense pain’ with any movement of her arms and fingers, caused as a result of the pinching of the nerves in her neck, resulting in unpredictable, immobilising and intensely painful vibrations and contractions;

   ·Increased sensitisation of her central nervous system, which subsequently results in even more pain in her nervous system, brain and muscles;

   ·Mental and physical exhaustion; and

   ·Limited neck movement and sensitivity to motion or vibration.[7]

   [5] Transcript of Proceedings, 28 September 2022, pages 184-184.

   [6] T9, page 29.

   [7] Transcript of Proceedings, 28 September 2022, pages 165, 186; Hearing Bundle, Tab 11, pages 193-195; Hearing Bundle, Tab 16, page 515.

8. As a consequence of these symptoms Ms Wilson reports difficulties which include:

   ·Difficulty shopping, preparing food, cooking, lifting things, sleeping, reading, housework, laundry, putting on shoes, driving, socialising;

   ·Difficulty wearing clothes that rest on her shoulders;

   ·Forgetfulness, difficulty maintaining focus, being motivated, retaining information, using public transport and completing tasks; and

   ·Anxiety, depression and fatigue.[8]

   EVIDENCE

   [8] T17; T18; Hearing Bundle, Tab 11, pages 193-199.

   Ms Wilson

9. Ms Wilson described her day-to-day experience as follows:

   “I do not really have good days and bad days, just days with less pain to extreme pain and weakness that can fluctuate throughout the day and night. It is unpredictable and variable day to day.”[9]

   [9] Hearing Bundle, Tab 11, page 193.

10. In oral evidence Ms Wilson provided the following description:

    “…it is my nerves are vibrating through my muscles continuously, which makes my muscles ache and ache, which makes my muscles contract, which then makes my whole body contract, which then – so I’m vibrating right now and the – the more pain that I’m in, the vibration becomes internal then goes to external because I am vibrating externally from my nervous system.”[10]

    [10] Transcript of proceedings, 2 August 2022, page 35.

11. Ms Wilson attributes her difficulties, for the most part, to CSS. She explained her neurologist advised her that FND was an “umbrella term” for any condition that caused problems with the functioning of the central nervous system and included diagnoses such as epilepsy, multiple sclerosis and CSS.[11]

    [11] Transcript of proceedings, 28 September 2022, page 186.

12. Ms Wilson explained that her fatigue and exhaustion occurred as a result of her chronic pain symptoms as follows:

    I don’t sleep very well and wake up 2-3 times a night in pain and discomfort and have to walk around and stretch my body, sometimes I am able to go back to sleep other times I cannot and am up for hours during the night or from 3 or 4 am.

    Most days I wake up feeling exhausted and in pain.[12]

    [12] Hearing Bundle, Tab 11, page 193.

13. She maintains she has developed secondary depression as a consequence of her pain symptoms and states in part:

    I get depressed because my body is in so much pain, I can’t move.

    …

    I get down because my body doesn’t work and I can’t work and I can’t treat it because I don’t have the financial ability to do so, and I’ve lost everything in my life and I’m living in a van.[13]

    [13] Transcript of proceedings, 2 August 2022, pages 38-39.

14. Ms Wilson was assessed by a psychiatrist in 2010 in the context of a workers compensation claim.[14] Ms Wilson did not provide any documentation in respect of the outcome of that assessment. She insists that she does not need to see a psychiatrist and denies having any psychiatric condition or significant mental health issues.[15] She maintains that her depression is a consequence of the pain she experiences and the circumstances in which she finds herself, which include navigating the Scheme process.[16]

    [14] Ibid, page 38.

    [15] Ibid.

    [16] Ibid.

15. Ms Wilson seemed unable to draw a relevant distinction between depression and low moods due to the vicissitudes of life. In cross examination the following evidence was given:

    Mr. Sproule: So, Ms Wilson, is your evidence that you do not have a psychiatric condition, including depression?

    Applicant: No, excluding depression. I – I get depressed – I do get depressed. I’ve lost my brother and my grandmother. That’s going to depress me because it’s grief.[17]

    [17] Transcript of proceedings, 2 August 2022, page 38.

    Dr Fiona McGrath

16. Dr Fiona McGrath has been Ms Wilson's general practitioner for approximately 20 years. In oral evidence, she described Ms Wilson prior to developing CFS as follows:

    …just, as expected, any other young healthy person who was in fulltime employment, working for herself, had – seemed to have, you know, be at a good place in life, so she would just come in for normal, kind of women’s health check-up type things, minor, you know, if she, sort of, twisted her ankle or something like that. Never really had any, sort of, significant medical complaints, such as that routine check-up that you’d – you know, most people have. So, she was a very healthy, happy, appeared a very well-balanced kind of person, no mental health concerns at all, she was raising her son, she was very happy doing that, they were quite close, and she was very happy with her profession in the ecology area.[18]

    [18] Transcript of proceedings, 3 August 2022, pages 88-89.

17. Dr McGrath explained that Ms Wilson did not fully recover from her CFS however returned to a level of improved health after a couple of years.[19] In 2018, Ms Wilson presented with symptoms in her neck and arm and Dr McGrath referred her for review by a neurosurgeon.[20] These symptoms also occurred in the context of fatigue, brain fog and pain.[21] At that time Dr McGrath considered Ms Wilson’s symptoms as being extremely severe.[22]

    [19] Ibid, pages 89-90.

    [20] Transcript of proceedings, 3 August 2022, page 90.

    [21] Ibid.

    [22] Ibid.

18. Dr McGrath’s evidence referred to a “cluster of symptoms” that affected the Applicant, causing difficulties with reading, focusing her eyes, bending her head forward to perform tasks, using her hands, moving her neck, tolerating loud noises, staying on task, driving, cooking, cleaning and shopping.[23] Ms Wilson’s memory and cognitive functioning had also been affected by depression.[24] Her opinion is that this cluster of symptoms has a “very profound impact” upon Ms Wilson and she had declined “a lot” since 2010.[25]

    [23] Ibid, page 95; Hearing Bundle, Tab 11, page 310.

    [24] Hearing Bundle, Tab 11, page 310.

    [25] Transcript of proceedings, 3 August 2022, page 96.

19. Dr McGrath was cross examined on whether her evidence was based on her own observations, or on Ms Wilson’s self-reporting. She accepted that some of her commentary such “cooking or things that she doesn’t do” was based on Ms Wilson’s self-reporting.[26] Notwithstanding, she gave evidence of her own observations including Ms Wilson being careful not to move her neck when getting up from a chair.[27] Dr McGrath also referred to brain fog and chronic fatigue with Ms Wilson having difficulty with her memory in recalling information during medical consultations.[28]

    [26] Ibid, page 109.

    [27] Transcript of proceedings, 3 August 2022, page 109.

    [28] Ibid, pages 108, 111.

20. Dr McGrath’s records make numerous references to Ms Wilson having depression[29] and she was cross examined in relation to Ms Wilson having depression as an impairment for the purposes of access to the Scheme. She explained,

    …sometimes…when we write reasons for visit, depression, that could be a mood, it could be like someone was down at this time.[30]

    [29] T13, pages 36-42.

    [30] Transcript of proceedings, 3 August 2022, page 102.

21. This evidence was not persuasive and to a significant extent discredited the references to depression in her medical records and the Scheme access request form.

    Evidence – Medical experts

22. In 2016 Dr Ken Maguire, Rheumatologist confirmed a diagnosis of CFS in the context of an eight-year history of chronic fatigue.[31] He attributed the Ms Wilson’s increasing neck pain to upper limb radiculopathy and considered that Ms Wilson had no other major clinical problems.[32]

    [31] T9, page 29.

    [32] Ibid, pages 29-30.

23. Dr John Evans, Radiologist reported on CT imaging of Ms Wilson’s cervical spine in 2016.[33] He noted minor degenerative changes in the C5/C6 disc resulting in minor foraminal stenoses and mild impingement on the spinal cord.[34] He considered these changes to be minor and of doubtful significance.[35]

    [33] T4, page 23.

    [34] Ibid.

    [35] Ibid.

24. Dr Neelash Ratanjee, Radiologist reported on MRI imaging of Ms Wilson’s cervical spine in 2018.[36] He also concluded Ms Wilson had lower cervical spondylosis and radioculopathy.[37]

    [36] T10, page 31.

    [37] Ibid.

25. In 2019, Dr Adrian Nowitzke, Neurosurgeon arranged nerve conduction studies on Ms Wilson.[38] He concluded these were “normal” and stated that any “serious surgical conditions” could be ruled out.[39]

    [38] T11, page 33.

    [39]  Ibid.

26. In 2020 Dr Donald Craig, Neurologist assessed Ms Wilson in relation to her neck discomfort and electric sensations.[40] He agreed with Dr Nowitzke that Ms Wilson’s nerve conduction studies were unremarkable.[41] In relation to her CFS he states,

    She has previously had a diagnosis of chronic fatigue syndrome secondary to viral exposure while on holiday in Thailand in the company of friends. She felt there had been an improvement slowly but near completely from the chronic fatigue syndrome.[42]

    [40] Hearing Bundle, Tab 3, page 161.

    [41] Ibid, page 162.

    [42] Hearing Bundle, Tab 3, page 161.

27. Dr Craig’s clinical assessment referred to the following,

    The clinical examination revealed normal tone and give-away weakness bilaterally.  There was no clear lateralisation of motor symptoms in the upper limbs. Sensory testing provoked some of the vibration symptoms, particularly with the tuning fork. The reflexes were present globally and even and gait was normal.[43]

    [43] Ibid, page 162.

28. Ms Wilson suggested to Dr Craig viral exposure, structural malformation, sensitisation through shingles and chronic fatigue due to viral exposure as the possible aetiology for her symptoms. Dr Craig disagreed with these suggestions and stated;

    There may be an overlay from the right cervical compression that is symptomatic. However, I feel she may be misserved by engaging in further NCS [Nerve Conduction Studies] or CSF [Cerebrospinal Fluid] investigations as the history and examination are to me in keeping with a functional neurology.[44]

    (emphasis added)

    [44] Ibid.

29. Dr Joshua Daly, a Consultant Pain Medicine Physician whose expertise includes pain medicine, chronic pain and pain management assessed Ms Wilson on 6 May 2021.[45] His clinical assessment refers to Ms Wilson being unable to flex her neck to look at scales but then subsequently being able to look at her toes when her neck symptoms had subsided.[46] He assessed the flexion and extension of her neck as each being 10% of what should be expected and that her rotation and extension movements were limited by secondary pain.[47] Dr Daly described Ms Wilson’s muscle strength in all groups of upper limbs as normal however were initially limited “by intention”.[48]

    [45] Hearing Bundle, Tab 12, page 201.

    [46] Ibid, page 205.

    [47] Ibid, page 206.

    [48] Ibid.

30. Dr Daly was unable to conclude a formal pain diagnosis and suggested that Ms Wilson’s pain may occur as a consequence of ‘nociplastic pain’.[49] He explained nociplastic pain as being pain arising from an altered nociception despite there being no clear evidence of tissue damage which would explain the symptoms of pain a person is experiencing.[50]

    [49] Hearing Bundle, Tab 12, page 209.

    [50] Ibid.

31. In respect of CFS as being a cause of Ms Wilson’s symptoms Dr Daly explained that CFS did not form part of his practice as a pain specialist because CFS does not cause pain and is not a pain condition.[51]

    [51] Transcript of proceedings, 2 August 2022, page 16.

32. In respect of the Ms Wilson’s nerve impingement, Dr Daly explained Ms Wilson’s single cervical disc bulge did not explain the pain throughout the majority of her body[52] and he stated:

    …the diagnosis of nerve impingement and cervical disc pain whilst present on the imaging studies is not responsible for the full constellation of symptoms and signs that she is displaying and is a secondary finding rather that any cause or majority influence for her full medical presentation today.[53]

    [52] Transcript of proceedings, 2 August 2022, page 13.

    [53] Hearing Bundle, Tab 12, page 206.

33. In relation to CSS being responsible for Ms Wilson’s intense pain Dr Daly disagreed with the opinions of Mr Atherton and Ms Walker.[54] In doing so, he confirmed his expertise as a pain specialist in relation to central sensitisation (CS).[55] Dr Daly’s explained that CS was a phenomenon rather than a syndrome or a disease.[56] Central sensitisation relates to a “biological process” that describes how chronic pain may evolve whereby neurons respond more avidly or amplified though a stimulus. This process, in Dr Daly’s experience tends to be at discrete levels of either the spinal cord or in the peripheral nervous system.[57] In summary Dr Daly explained that central sensitisation is a phenomenon which affects a region of interest of pain and not the entire body.[58]

    [54] Transcript of proceedings, 2 August 2022, page 14.

    [55] Ibid, page 15.

    [56] Ibid, page 14.

    [57] Ibid, page 15.

    [58] Transcript of proceedings, 2 August 2022, page 15.

34. Dr Daly did however agree with Dr Craig’s diagnosis of FND and Dr Craig’s statement that Ms Wilson’s history and examination “are in keeping with a functional neurology”[59].[60] He qualified that FND was a condition best diagnosed by a neurologist[61] and described FND as a ‘diagnosis of exclusion’ made in the context of being “unable to find another satisfactory explanation”.[62]

    [59] Hearing Bundle, Tab 3, page 161.

    [60] Transcript of proceedings, 2 August 2022, pages 16-17.

    [61] Ibid, page 16.

    [62] Ibid, page 17.

    Allied Health professionals

35. Ms Wilson’s treating Physiotherapist, Mr Adam Atherton explained that when he commenced treating her, he diagnosed an active radiculopathy due to a ‘nerve pinch’ which was treated fairly effectively.[63] In a similar manner as Dr McGrath, he referred to Ms Wilson developing “a cluster of other symptoms”.[64] Mr Atherton attributed the aetiology of this cluster of other symptoms to CSS.[65] He described CSS as a “new label” given to a “heterogeneous group of disorders like: fibromyalgia; irritable bowel syndrome; chronic headaches; temporomandibular disorders; pelvic pain syndromes – they share common symptoms with persistent pain being the most prominent feature of these.”[66]

    [63] Ibid, page 59.

    [64] Ibid.

    [65] Ibid.

    [66] Transcript of proceedings, 2 August 2022, page 59.

1. Mr Atherton also gave evidence in relation to Ms Wilson’s mental state purportedly on the basis of having known and treated her for a period of two years. Extraordinarily, Mr Atherton stated, “So I know I can verify your sanity. Julie, you are no nutcase…”.[67] Mr Atherton’s qualifications and expertise in relation to diagnosing depression were understandably and appropriately challenged under cross examination and he conceded that he did not ‘diagnose’ Ms Wilson with depression.[68]

   [67] Ibid, page 62.

   [68] Ibid, page 65.

2. Ms Deborah Walker, Psychologist treated Ms Wilson following referral from Dr McGrath in January 2021.[69] Her records refer to a presentation with “Depression, Anxiety secondary to health issues and loss of work and professional role and homelessness”.[70] Relevantly Ms Walker states “It should be noted that it is not the depression that causes the pain sensation, rather it is the pain that understandably causes symptoms of depression.”[71]

   [69] Hearing Bundle, Tab 18, page 708.

   [70] Ibid, page 709.

   [71] Hearing Bundle, Tab 16, page 501.

3. Ms Walker agreed with Mr Atherton’s opinion that Ms Wilson’s intense pain symptoms were caused by CSS.[72] Ms Walker purported to have expertise in respect of CSS and referred to various literature in her report. She hypothesised that Ms Wilson’s purported CSS was as a result of, or consistent with a pinched nerve or a viral infection.[73] In her oral evidence she conceded that she was not a pain physician however did have “a lot of experience in the pain field”.[74] Ms Walker’s treatment focused on Ms Wilson’s pain symptoms rather than any depression. She explained that her role as a psychologist was “to help her [Ms Wilson] with her functioning. Not necessarily to formally diagnose her”.[75] Further, that a formal diagnosis of clinical depression was best made by a psychiatrist or a general practitioner who knew Ms Wilson well.[76]

   [72] Ibid.

   [73] Transcript of proceedings, 28 September 2022, page 170.

   [74] Transcript of proceedings, 21 September 2022, page 139.

   [75] Ibid, page 141.

   [76] Transcript of proceedings, 21 September 2022, page 141.

4. Ms Catherine McLay, an Occupational Therapist assessed Ms Wilson at her place of residence in December 2021. Her evidence distinguished between the disabilities that were self-reported and those that she observed. These observations included Ms Wilson using two hands to carry a kettle or remove an item out of a microwave and being affected by pain and fatigue towards the end of the assessment[77].

   [77] Hearing Book, Tab 13, pages 222-224; Transcript of proceedings, 3 August 2022, page 123.

5. Ms McLay’s opinion was that Ms Wilson’s cognition was adversely affected in respect of her attention, concentration, understanding, ability to remember information and communication difficulties.[78] She described Ms Wilson’s difficulties with executive functioning including planning and problem solving. Relevantly, she did not identify any self-limiting or contrary behaviours in her assessment.[79] By way of a summary in her report McLay states:

   The outcome of the assessment leads me to believe that Julie does present with some reduced functional capacity in a number of the areas being assessed by the Tribunal. I believe the areas that Julie presents with the most functional capacity difficulties are social interaction, learning and self-management. Broadly speaking, pain, fatigue and some changes to her cognition seem to be the most limiting factors.[80]

   Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or have one or more impairments to which a psychosocial disability is attributable?

   [78] Transcript of proceedings, 3 August 2022, page 120.

   [79] Hearing Bundle, Tab 13, page 226.

   [80] Ibid, page 228.

6. For the purposes of section 24(1)(a) the Tribunal must be satisfied that Ms Wilson has a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or an impairment to which a psychosocial disability is attributable.

7. The evidence of Dr Evans and Dr Ratanjee confirms that Ms Wilson has structural cervical spine pathology. Dr McGrath and Mr Atherton’s evidence confirms that this pathology has caused Ms Wilson to suffer from radiculopathy (otherwise known as nerve impingement), being a condition defined as “pain caused by irritation of a nerve as it exits the spinal cord”[81]. However, based on the evidence of Mr Atherton, I am satisfied that Ms Wilson’s radiculopathy has been effectively treated with physiotherapy. The evidence of both Dr McGrath and Mr Atherton clearly distinguishes between radiculopathy and Ms Wilson’s ongoing ‘cluster of other symptoms’. I am satisfied that the aetiology of these other ongoing symptoms is not nerve impingement or radiculopathy. In this regard I also am persuaded by Dr Daly’s evidence which was that these other ongoing symptoms cannot be reasonably and adequately explained by a nerve impingement at the level of the cervical spine.

   [81] Harvard Medical School, ‘Medical Dictionary of Health Terms’, Harvard Health Publishing, 13 December 2011, <>

   I am not satisfied that the aetiology of Ms Wilson’s ongoing other symptoms is CSS. Again, I am persuaded by the evidence of Dr Daly, a medical specialist with expertise in respect of central sensitisation as a part of his specialty. I consider the merits of his opinion far outweigh any opinion or hypotheses of a diagnosis of CSS purported to be made by either Mr Atherton or Ms Walker. I consider the evidence given by both Ms Walker and Mr Atherton in relation to CSS as being the cause of the Ms Wilson’s other ongoing symptoms to be outside their areas of expertise. I accept the opinion of Dr Daly which is that central sensitisation is a ‘phenomenon’ whereby by pain is experienced at discrete levels and not over the entire body.

8. I am not satisfied that the aetiology of Ms Wilson’s ongoing other symptoms is CFS. Dr McGrath’s evidence confirms a diagnosis of CFS in or around 2008 and the Agency does not dispute this diagnosis.[82] I also accept that Ms Wilson has had a diagnosis of CFS[83] which is a syndrome characterised by chronic fatigue. Whilst I accept that CFS has historically caused Ms Wilson to be fatigued I do not accept that her ongoing other symptoms are caused by CFS. In this regard I am persuaded by the evidence of Dr Daly which was that CFS is not a pain condition. In her own evidence, Ms Wilson also referred to her fatigue being a result of her ongoing intense pain and this evidence reinforced Dr Daly’s opinion.

   [82] Respondent’s closing submissions dated 20 October 2022, paragraph [24].

   [83] T9, page 29; Hearing Bundle, Tab 7, page 173.

9. Referring now to whether Ms Wilson suffers from depression. Mr Atherton does not have the requisite qualifications to certify the mental state of Ms Wilson. Ms Wilson’s evidence in respect of a diagnosis of depression was contradictory and not persuasive. Likewise, Dr McGrath’s evidence in relation to a diagnosis of depression was not persuasive and to some extent concerning. Ms Walker’s evidence also did not assist my considerations given her unwillingness to provide a diagnosis.

10. I have formed the view that Ms Wilson is most certainly affected by low moods in the context of ongoing intense pain which, by its very nature, has a deleterious effect on her quality of life. This view does however not satisfy me that Ms Wilson has an impairment to which a psychosocial impairment is attributable.

11. I am satisfied that FND explains the aetiology of Ms Wilson’s ongoing other symptoms. Dr Craig’s opinion is that Ms Wilson’s history and examination “are in keeping with a functional neurology.”[84] Dr Daly agrees with Dr Craig’s diagnosis of FND. The evidence of these doctors is highly persuasive. I am therefore satisfied that Ms Wilson has a disability which is attributable to a neurological impairment caused by FND. I find that as a result of this neurological impairment Ms Wilson has a number of impairments which includes, but is not limited to, a restricted range of movement of her neck and a reduced ability to use her upper limbs without experiencing severe and intense pain.

    [84] Hearing Bundle, Tab 3, page 161.

12. Having regard to the evidence of both Dr McGrath and Ms McLay I am also satisfied that Ms Wilson experiences a level of cognitive impairment that affects her attention, concentration, memory and executive functioning.

    Are the impairments affecting the Applicant permanent or likely or likely to be permanent?

13. For the purposes of section 24(1)(b) Ms Wilson is required to satisfy the Tribunal that her impairment is permanent, or likely to be permanent. The term ‘permanent’ is not defined in the Act however most recently Mortimer J held that “the correct meaning of ‘permanent’ in s24(1)(b) is ‘enduring’”[85].

    [85] National Disability Insurance Agency v Davis [2022] FCA 1002 at [85].

14. Rules 5.4 and 5.6 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 assist when considering permanency or likely permanency. Rule 5.4 provides that an impairment is, or is likely, to be permanent only if there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment. Rule 5.6 provides that an impairment may require medical treatment and review before a determination can be made on its permanence or likely permanence. Further, that an impairment is, or likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated.

15. The Scheme Operational Guidelines also bear consideration and provide that in circumstances where there is a possibility of medical treatment and such medical treatment has some prospect of success, a conclusion as to permanency should not be reached.  They provide as follows, in part:

    We need evidence that you’ll likely have your impairment for your whole life.

    …

    Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.

    …

    Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.

    Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments which are: 

    ·known and available

    ·appropriate for you and your impairment

    ·evidence-based – that is, there’s proof they are likely to be effective.[86]

    [86] National Disability Insurance Scheme Operational Guidelines, ‘Our guidelines - becoming a participant; Applying to the NDIS’.

16. Dr Daly raised the possibility of nociplastic pain which he explained was “pain that arises from altered nociception despite no clear evidence of actual or threatened tissue damage causing activation of peripheral nociceptors or evidence of disease or lesion of the somatosensory system causing the pain”.[87] In light of Ms Wilson’s widespread pain and her depressed mood Dr Daly’s opinion was that it would be worthwhile for her to see a pain specialist with a background in psychiatry or nociplastic pain, or alternatively a specialist psychiatrist. No evidence was provided of Ms Wilson being reviewed by a pain specialist with a background in psychiatry or nociplastic pain, or a psychiatrist.

    [87] Hearing Bundle, Tab 12, page 209.

17. Dr Craig suggested the potential for therapy of duloxetine medication and counselling as a treatment for Ms Wilson, albeit in June 2020.[88]

    [88] Hearing Bundle, Tab 3, page 162.

18. In relation to counselling I have thus considered the treatment provided by Ms Walker. Ms Walker described herself as a generalised psychologist. She commenced treating Ms Wilson on 17 February 2021.[89] Her treatment “focused on exploring reducing global activation of the CNS, addressing negative pain beliefs/fear avoidance and enhancing pain acceptance and functional activity despite pain through pacing.”[90] Relevantly Ms Walker’s records of 20 July 2021 state “talked about the fact that treatment I am providing isn’t helping??”.[91] Ms Walker then suggests a referral of Ms Wilson to Dr Alastair Campbell from MI Psychology. Ms Walker appears even to have offered to call Dr Campbell and “provide background and treatment provided so far.”[92] From this evidence I formed the view that Ms Walker considered that Ms Wilson may benefit from treatment from a clinical psychologist, such as Dr Campbell. No evidence was provided as to whether Ms Wilson has sought treatment from Dr Campbell or any other clinical psychologist.

    [89] Hearing Bundle, Tab 8, page 175.

    [90] Ibid.

    [91] Hearing Bundle, Tab 18, page 746.

    [92] Ibid.

19. In relation to a course of duloxetine as suggested by Dr Craig, I note this medication was prescribed by Dr McGrath on 20 September 2019 as a 28-day script and prior to Dr Craig’s assessment in June 2020.[93] Dr McGrath’s evidence was that this medication was at this time prescribed for depression rather than pain. No evidence was provided that a trial of a therapeutic dose of duloxetine for a period has occurred.

    [93] Hearing Bundle, Tab 16, page 248.

20. On the basis of this evidence, I am not satisfied that Ms Wilson has undertaken all known, available, and appropriate evidence based clinical, medical, or other treatments that would be likely to remedy the disabilities that affect her. In my view there remains treatment opportunities for Ms Wilson which include pharmacology, treatment by a clinical psychologist and review by pain specialist with a background in psychiatry or nociplastic pain, or a psychiatrist.

21. In respect of Ms Wilson’s cognitive impairment the evidence of Ms McLay is that this impairment is impacted upon, at least in part, by her pain. Ms Wilson’s evidence is that her pain is considerable. I therefore consider that the issue of permanency, or likely permanency, of any cognitive changes cannot be determined until Ms Wilson has undertaken all known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy her FND. This is on the basis that until treatment for her FND has been exhausted there remains a prospect that her pain will subside or reduce and her cognition may improve.

    CONCLUSION

22. Section 24(1) of the Act is cumulative. Having failed to establish that Ms Wilson’s neurological and cognitive impairments are permanent or likely to be permanent, pursuant to section 24(1)(b), the Tribunal must by operation of the Act affirm the decision under review.

23. The Tribunal notes that Ms Wilson is presently 53 years of age and can re-apply for access to the Scheme. The Tribunal also notes that upon any further access request the Respondent may request that Ms Wilson undergo an assessment by an appropriately qualified person pursuant to section 26(1)(b) of the Act. This may have relevance particularly in respect of the issues raised in relation to treatment of her FND and its likely permanency.

24. The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for the decision herein of Senior Member Joanne Collins

......................................[SGD]..................................

Associate

Dated: 29 March 2023

Date(s) of hearing:	2 and 3 August 2022, 21 and 28 September 2022
Date final submissions received:	2 February 2023
Solicitors for the Respondent:	Ms S Hardie, HWL Ebsworth Lawyers